Brox Company Limited v. Konzelmann Vineyards Inc., 2026 ONSC 2405
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Brox Company Limited
Applicant
– and –
Konzelmann Vineyards Inc.
Respondent
– and –
The Corporation of the Town of Niagara-on-the-Lake
Respondent
COUNSEL:
J.P. Maloney, counsel for the Applicant
P. DeMelo, counsel for the Respondent
K. Shedden, counsel for the Respondent
HEARD: February 3, 2026
THE HONOURABLE JUSTICE A.J. OHLER
REASONS FOR JUDGMENT
1The applicant, Brox Company Limited, applies for declaratory relief and permanent injunctions against Konzelmann Vineyards Inc. (“Konzelmann”) and The Corporation of the Town of Niagara-on-the-Lake (the “Town”).
2In the notice of application, the applicant sought declarations that Konzelmann’s use of the property was in violation of the Town’s by-laws and site-specific plan and sought an injunction restraining Konzelmann’s use to that in conformity with same. The applicant also sought an injunction compelling the Town to enforce its by-laws as against Konzelmann.
3On the day the application was to be argued, Konzelmann consented to the declarations and permanent injunctions sought. The application proceeded as between the applicant and the Town.
4The applicant seeks orders in the manner of mandamus, compelling the Town to enforce its zoning by-law. The applicant also seeks an order restraining the Town from encouraging and/or taking steps to facilitate Konzelmann’s use of the land not in compliance with the by-law or site plan, under s. 440 of the Municipal Act, 2001, S.O. 2001, c. 25.
5For the following reasons, the application is dismissed.
Background
6The evidence on this application included affidavits from Edward Werner, President of Brox Company Limited, Kirsten McCauley (“McCauley”), Director of Community and Development Services for the Town, and Jim Reschke (“Reschke”), President of Konzelmann.
7The applicant and Konzelmann operate wineries on adjacent lands in the Town. The north end of both properties run along the shore of Lake Ontario; Lakeshore Road runs along the south. The Konzelmann winery is situated close to the road. Deeper into the land, close to the lake, sits a residence and gazebo. These buildings are adjacent to and within a few hundred metres of a residence, agricultural buildings, and vineyard on the applicant’s property.
8Both lands are zoned for agricultural use, pursuant to the Town’s Zoning By-Law 500A-74 (the “by-law”). Within areas zoned agricultural, the primary use of the land is farming. Farm wineries and larger-scaled estate wineries are permitted as a secondary use. Operation of a farm winery does not require a by-law amendment; operation as a larger-scaled estate winery requires a site-specific zoning amendment. Every estate winery has its own site-specific by-law, i.e. site plan agreement.
9In 1987, Konzelmann obtained a site-specific zoning amendment to operate as an estate winery. In 1994, the Konzelmann by-law was approved, expanding the use of the land to include the retail sale of wine, an indoor hospitality room, and agricultural market. The site-specific by-law, or agreement was last updated in 2009; it does not permit Konzelmann to host outdoor hospitality events, like weddings, on the land.
10Since approximately 2017, Konzelmann has hosted outdoor special events pursuant to the Town’s ‘special event permit’ policy. In 2023, Konzelmann applied for and obtained one ‘special event permit’ to cover 21 separate outdoor events between May and October 2023.
11The outdoor events hosted by Konzelmann generally occur near the gazebo, close to the lake and immediately adjacent to the residence, agricultural buildings and vineyard on the applicant’s land.
12As set out in Werner’s affidavit, these events have restricted the applicant’s ability to carry out its normal farming activities, such as the application of pesticides, at the risk of disturbing the events. These events are also a nuisance; vehicles are sometimes parked outside designated parking areas and can interfere with the quiet enjoyment of the applicant’s land, as they often involve the use of amplified music. Given the disruption caused by these events next door, a proposed sale of the applicant’s property did not proceed.
13The applicant maintains that the hosting of these events has introduced a commercial use in an area zoned agricultural, which interferes with the applicant’s ability to conduct normal farming activities and constitutes a nuisance.
14Werner met with the Town on several occasions in 2023 and 2024 to raise concerns with the use of the Konzelmann property.
15The Town did not take any steps to enforce the general by-law or site-specific Konzelmann by-law.
16In 2024, the applicant began this application seeking relief as against Konzelmann and the Town. With respect to Konzelmann, the applicant sought a declaration that Konzelmann’s use of the land to host outdoor events was (i) contrary to the Town’s zoning by-law, and (ii) inconsistent with the approved site-plan agreement between Konzelmann and the Town. The applicant sought a permanent injunction restraining Konzelmann from (i) any use of its land not permitted by the by-law; (ii) any use inconsistent with the approved site plan agreement; and (iii) any use inconsistent with any license that may be issued by the Alcohol and Gaming Commission of Ontario. With respect to the Town, the applicant sought a permanent injunction restraining the Town from permitting Konzelmann to use its lands in a manner not permitted by the by-law and site plan agreement.
17McCauley , Director of Community and Development Services for the Town, provided an affidavit and was cross-examined.
18According to McCauley, in the fall of 2023, the Town met with Konzelmann and advised that, based on the number of outdoor events occurring, Konzelmann needed to bring an application to amend its zoning by-law and site plan agreement. In 2024, Konzelmann was advised that the Town would no longer issue a single special event permit authorizing multiple outdoor special events, as it had done in the past.
19In the spring of 2024, Konzelmann submitted one application for a special event permit to host 17 separate outdoor special events between June and October 2024. The application was not distributed to Town staff for review, and the permit was not issued.
20The events proceeded in the absence of a special event permit. As of the date the Werner application was sworn, the applicant was aware of eight special outdoor events having taken place.
21The Town’s by-law enforcement falls within the fire services and by-law enforcement offices. McCauley was not aware of any direction given to by-law enforcement not to act on the applicant’s complaints.
22Reschke swore an affidavit and was cross-examined. He acknowledged that the Konzelmann site-specific agreement does not provide for outdoor special events. Instead, from 2017 through 2023, Konzelmann obtained one special event permit to host a series of outdoor events on its property.
23Reschke recalled meeting with the Town in the fall of 2023 but did not remember anyone advising him that Konzelmann had to apply for re-zoning or a site-specific amendment to host outdoor events, or that the Town would no longer issue a single special event permit to allow for multiple outdoor special events. Reschke did not think that discussion occurred because Konzelmann applied for a special event permit for 2024. He confirmed that in 2024, Konzelmann applied for one special event permit to host approximately 17 outdoor events.
24Reschke confirmed that the Town did not issue a special event permit, and that the events proceeded anyway. Reschke explained that the Town said, “We can’t issue a permit, but we’re not going to stop you from doing events as well.” He believed that the Town’s legal counsel made that representation to him but was not sure. He was not sure if McCauley was present when that assurance was made. In essence, the Town said, “We’re not gonna stop you. We’ve allowed you to do these in the past.”
25During submissions on this hearing, the court learned that Konzelmann continued to host outdoor special events in 2025.
Issues
26On the day this application was to be argued, Konzelmann consented to a declaration that in 2024 and 2025 Konzelmann used its lands to host outdoor special events, in contravention of the Town’s by-law and Konzelmann’s site plan agreement. Konzelmann also consented to a permanent injunction restraining it from any use of its lands not permitted by the by-law and site plan agreement. A copy of the Order is attached as Schedule A. This order settles the issues between the applicant and Konzelmann. Future use of the Konzelmann lands in contravention of the by-law or site plan agreement would constitute a breach of a court order.
27Argument proceeded with respect to the applicant’s request for an injunction compelling the Town to enforce its by-law and/or restraining the Town from encouraging or facilitating Konzelmann’s breach of the by-law or site plan agreement.
The Position of the Parties
28The applicant argues Konzelmann has operated in clear breach of both the by-law and site plan agreement. The Town has been aware of the breaches and refused to enforce its own by-laws. The applicant seeks an order by way of mandamus, compelling the Town to enforce its zoning by-law and/or the site plan agreement with Konzelmann. The applicant also seeks an order restraining the Town from encouraging and/or facilitating breach of its by-laws under s. 440 of the Municipal Act, S.O. 2001, c. 25.
29The Town acknowledges that the by-law and site-specific agreement with respect to Konzelmann do not permit outdoor special events. However, the Town argues that it does not have a specific duty to enforce its by-law and, as such, an order for mandamus, prohibition, and/or a statutory injunction is not available to the applicant.
Analysis
30Mandamus is an extraordinary and discretionary remedy. Mandamus can issue to compel a municipality to act, but only where there exists a legal duty compelling the activity in the first place: Hanzelka v. Oshawa (City), 2011 ONSC 4435, at para. 28, relying on Freitag v. Penetanguishene (Town) (2005), 2005 33780 (ON SCDC), 202 O.A.C. 227, (Div. Ct.), [2005] O.J. No. 4019 (Div. Ct.). In Freitag, the applicant sought a mandatory order requiring the municipality to enforce two by-laws to improve sightlines at 11 intersections. On an application for judicial review the Divisional Court held that mandamus was not available where the by-law does not impose a duty of enforcement: Freitag, at paras. 8-12.
31The zoning by-law does not impose an enforcement duty on the Town. An order in the manner of mandamus or prohibition is not available.
32That does not leave a taxpayer without a remedy for a breach of a by-law.
33A taxpayer who seeks compliance with a municipal by-law may seek a statutory injunction under s. 440 of the Municipal Act. Section 440 provides:
If any by-law of a municipality or by-law of a local board of a municipality under this act or any other Act is contravened, in addition to any other remedy and to any penalty imposed by the by-law, the contravention may be restrained by application at the instance of a taxpayer or the municipality or local board.
34In other words, the activities constituting the contravention may be restrained by the court, regardless of enforcement (or lack thereof) by the municipality. In Township of King v. 2424155 Ontario Inc., 2018 ONSC 1415, at para. 28 (“King”), the court determined that section 440:
[S]hows a clear legislative intention that a restraining order (i.e., an injunction) is one of the remedies available to a municipality or a taxpayer to seek a remedy for contravention of a by-law. There is no requirement to exhaust other remedies. Indeed, the language in s. 440 “in additional to any other remedy and to any penalty imposed by the by-law” indicates a legislative intent that a restraining order is one of the tools available to municipalities (and taxpayers) to enforce compliance with municipal by-laws: Springwater (Township) v. 829664 Ontario Ltd., 2008 8261 at paragraph 8 (ONSC).
35As an example, the court in JJ’s Hospitality v. Kal Tire, 2020 ONSC 6198 granted the taxpayer’s application to restrain another taxpayer in breach of a municipal by-law under s. 440.
36A taxpayer is not required to demonstrate that the municipality acted unreasonably or in bad faith in declining to enforce its by-law before it may obtain injunctive relief: Syrowik v. Wheeler, 2021 ONCA 819, at para. 9.
37The applicant has not identified a case in which a taxpayer obtained an order under s. 440 of the Act to restrain a municipality.
38The Town argues that the investigation and enforcement of by-laws is a matter of broad discretion.
39There is a strong public interest in the enforcement of by-laws created in the public interest: City of Toronto v. Polai, 1969 339 (ON CA), [1970] 1 O.R. 483 (C.A.), (“Polai”). This is clear from a review of the cases in which statutory injunctions under s. 440 have been granted to a municipality seeking to restrain private individuals: see Polai; King; The Corporation of the Township of Schreiber v. Figliomeni et al., 2018 ONSC 3657 (“Schreiber”); Regional Municipality of York v. DiBlasi, 2014 ONSC 3259 (“York”).
40Based on this strong public interest, courts have been prepared to presume that government is acting in the public’s interest in seeking to enforce compliance with by-laws created to serve a public purpose: see King, at paras. 52, 53; Schreiber at paras. 32, 34. Similarly, in York, at para. 62, the court held that irreparable harm and the balance of convenience need not be considered under s. 440, as “the public authority is presumed to be acting in the best interest of the public and a breach of the law is considered to be irreparable harm to the public interest.”
41There is no question that a municipality has broad discretion in the enforcement of its by-laws, but that discretion is not unfettered: a municipality must act reasonably and in good faith: Foley v. Shamess, 2008 ONCA 588, 297 D.L.R. (4th) 287, at para. 29. Evidence of arbitrariness or bad faith in the enforcement of by-laws may well result in a municipality being denied relief under s. 440: see Polai.
42The Town did not contest the evidence of Reschke that Konzelmann was advised that the Town would not enforce the by-law or site-specific agreement. For the Town, that representation is itself a discretionary decision with respect to the enforcement of its by-laws.
43On the record before the court, I cannot find that the Town’s representation it would not enforce its by-law was the cause of the contravening conduct now conceded by Konzelmann and the Town. The applicant did not allege that the Town acted arbitrarily or in bad faith. There is no evidence before the court that the Town has been selective in its enforcement of its by-laws or site plan agreements, only evidence that the Town has not taken any enforcement steps with respect to Konzelmann.
44The applicant is not without a remedy; there is now an order of this court requiring Konzelmann to comply with the by-laws and site-specific agreement. The contravening conduct has been effectively restrained.
Conclusion
45The application as against the Town is dismissed.
46The parties are strongly encouraged to settle the matter of costs. If the parties cannot, the respondent Town may file costs submissions of no more than three pages, double spaced, in 12-point font, with a detailed costs outline and any offers to settle attached within 15 days of the release of this decision, and the applicant may file costs submissions on the same terms a further 10 days thereafter.
A. J. Ohler J.
Date Released: April 23, 2026
Schedule A
CITATION: Brox Company Limited v. Konzelmann Vineyards Inc., 2026 ONSC 2405
COURT FILE NO.: CV-24-00062358-0000
DATE: 2026-04-23
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Brox Company Limited
Applicant
– and –
Konzelmann Vineyards Inc.
Respondent
– and –
The Corporation of the Town of Niagara-on-the-Lake
Respondent
REASONS FOR JUDGMENT
A. J. Ohler J.
Date Released: April 23, 2026